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Photo by The New York Public Library; photo illustration by obamicon.me

The hot ticket in New York last night was a panel discussion at the New York Public Library between Lawrence Lessig and the artist Shepard Fairey.

Who, you ask? Lessig, a Stanford law professor and the author of “Remix: Making Art and Commerce Thrive in the Hybrid Economy,” is a rock star to anyone who celebrates Americans’ inalienable right to post mashups of “Starsky and Hutch” on YouTube. Fairey, the creator of the famous Obama “Hope” poster, is now pretty much just a rock star. Their conversation was moderated by Steven Johnson, the tech-savvy author who is, according his introducer last night, “the 35th most popular man on Twitter.”

The event felt a little like Burning Man for the so-called Copy Left, with body art to match. Shortly before the talking started, two big guys with big cameras ushered a woman with a cool shoulder tattoo of Fairey’s Obama poster out of her seat. Enforcers from the Associated Press, which claims Fairey violated its copyrightwhich is suing Fairey over alleged copyright infringement, perhaps?

Lessig began with a witty PowerPoint presentation, effectively a stump speech for the party of free culture. In one powerfully persuasive sequence, he demonstrated how the history of Western art can be seen as a series of knockoffs and mashups. He showed a hilarious video of George W. Bush and Tony Blair singing “Endless Love.” He also referred to people who support our current oppressive copyright regime as “good Germans,” but let’s be nice and ignore that.

Fairey’s Obama poster, Lessig said, was an “authentic grassroots” gesture, in keeping both with centuries of artistic practice and with Obama’s message of bottom-up democracy. As part of Fairey’s defense in the A.P. affair, Lessig’s Fair Use Project is using crowdsourcing to track down photographs that show Obama with a similar expression.

As Fairey discussed his own work, there seemed to be general agreement in the room that The Associated Press was acting like Big Brother — or worse, the record industry — by pursuing him for unauthorized use of Mannie Garcia’s photograph. And I would agree that Fairey, with the help of the millions of people who forwarded, reproduced and made their own spoofs of the Obama poster, took a fairly mundane background image and turned it into a powerful and complex new work. Whatever the legal arguments, the A.P.’s efforts to collect from Fairey certainly seem like boneheaded P.R.

When Johnson asked Fairey where he drew the line on reuse of his work, he replied, “I believe in intellectual property,” but said he makes case-by-case decisions about his own.

“I have people who look out for my interests, but I often disregard their advice,” he said, apparently referring to lawyers. For the most part, he said, he only goes after “straight bootlegging” by those out to make money. “One guy bragged about buying a Mercedes” with proceeds from a ripoff of the Obama poster, he said. But, he asked, what if the A.C.L.U. — one of the charities to which he has donated proceeds from his work — “needs a new Mercedes?” (In a case Fairey did not mention, his lawyers issued a cease-and-desist order to a graphic designer named Baxter Orr, who created and sold a version of Fairey’s famous Andre the Giant “Obey” image, to which he had added a respiratory mask and the word “Protect.”)

It wasn’t clear from the discussion, however, why the A.P. shouldn’t be able to make similar decisions about the use of Garcia’s photograph. This question seems especially important (self-interest alert!) as news organizations struggle to survive in the era of free content. As a freelance journalist I know recently put it, “Information wants to be free, but my writing wants to cost money.”

As broad a theory as espoused, but only based on examples as narrow as individual self-interest. Both sides of this debate are armed with their one color of crayon, and with a zeal nearly fanatical, try to color singularly everything to that one hue.
Creativity cannot be boxed or blueprinted, anymore than the bounds or appropriateness of protection for creative work can fit within bright lines.
Both speakers rely on laws protecting their intellectual properties, but when it comes to others’ IP, they demand something else.

The concept of “intellectual property” (IP) has many aspects. For one, a work of art (e.g., a sculpture) is not simply a decorative object but an embodyment of a statement by the artist. The owner of a sculpture cannot treat it as he would a piece of furniture, say by sawing off an arm to make it fit into a space, since this interferes with the artist’s statement, whose integrity (as the artist’s IP) he is obligated to protect.

Setting (and attempting to enforce) a price for use of IP is intended as a way of recouping the cost of producing it. But IP is fundamentally different from ordinary tangible property in that it can be copied at virtually no cost, thus the usual conception of ownership does not apply. The paradox of IP is that sometimes the best way to make money from it is to give it away – on the “give away the razor and sell the blades” model. In the Fairey poster example, making it freely available has resulted in popularity, in turn generating a market for objects in the same style. In an example from technology, IBM essentially gave away its IP by publishing the design specification for the original PC, generating an immense market for clones and third-party add-ons, and making the PC itself that much more valuable through the availability of after-market products including software.

What has the AP lost or been denied by Fairey’s use? At best they have lost the licensing fees that they would charge for use of the actual photograph in question. Fairey offered to pay that fee.

Last time I checked, the AP was supposed to be in the fact business, not the fine art business. And as far as I can tell, Fairey is in the art business. If that is not the case, I think I’ll have to start only reading stories that come through Fairey and other non-AP news services.

Mannie Garcia deserves credit for taking a technically very nice fact-conveying portrait of a Senator. I agree Fairey should have made a better effort to properly attribute the photo to the individual photographer, but he has explained the progression of things a hundred times and has made clear for quite some time before the photographer was identified that the photo came from an AP photographer.

The Obama Hope image became something much more than what Fairey ever imagined it would. Likewise, Mannie Garcia certainly can’t claim he knew that one photo was something so special among the thousand or more that he probably made that day.

The AP clearly isn’t interested in money. They have stated that the settlement they were proposing would have had funds going to emergency relief for journalists. What does that leave? It appears to me that the AP wants to prevent you, me, Fairey, and every other little guy out there from thinking we can do what Fairey did and get away with it.